Public Act 90-0472 of the 90th General Assembly
Public Act 90-0472
HB1619 Enrolled LRB9003933NTsb
AN ACT concerning rights and remedies, amending named
Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Probate Act of 1975 is amended by
changing Sections 1-11, 9-1, 9-3, 11-3, 11-5, 11a-5, and 23-2
as follows:
(755 ILCS 5/1-11) (from Ch. 110 1/2, par. 1-11)
Sec. 1-11. Nonresident representative. If a
representative is or becomes a nonresident of this State, the
representative he shall file in the court in which the estate
is pending a designation of a resident agent to accept
service of process, notice or demand required or permitted by
law to be served upon the representative. If the
representative he fails to do so, the clerk of the court is
constituted as agent of the representative upon whom the
process, notice or demand may be served. If service is made
upon the clerk of the court, the clerk of the court he shall
mail a copy of the process, notice or demand to the
representative at the representative's his last known post
office address and to the representative's his attorney of
record.
(Source: P.A. 85-692.)
(755 ILCS 5/9-1) (from Ch. 110 1/2, par. 9-1)
Sec. 9-1. Who may act as administrator.) A person who
has attained the age of 18 years, and is a resident of the
United States this State, is not of unsound mind, is not an
adjudged disabled person as defined in this Act and has not
been convicted of a felony, is qualified to act as
administrator.
(Source: P.A. 85-692.)
(755 ILCS 5/9-3) (from Ch. 110 1/2, par. 9-3)
Sec. 9-3. Persons entitled to preference in obtaining
letters.) The following persons are entitled to preference in
the following order in obtaining the issuance of letters of
administration and of administration with the will annexed:
(a) The surviving spouse or any person nominated by the
surviving spouse him.
(b) The legatees or any person nominated by them, with
preference to legatees who are children.
(c) The children or any person nominated by them.
(d) The grandchildren or any person nominated by them.
(e) The parents or any person nominated by them.
(f) The brothers and sisters or any person nominated by
them.
(g) The nearest kindred or any person nominated by them.
(h) The representative of the estate of a deceased ward.
(i) The Public Administrator.
(j) A creditor of the estate.
Only a person qualified to act as administrator under
this Act may nominate, except that a person who is not
qualified to act as administrator solely because of
non-residence in this State may nominate in accordance with
the order of preference set forth in this Section if he is a
resident of the United States. A person who has been removed
as representative under this Act loses his or her right to
name his or her successor.
When several persons are claiming and are equally
entitled to administer or to nominate an administrator, the
court may grant letters to one or more of them or to the
nominee of one or more of them.
(Source: P.A. 85-692.)
(755 ILCS 5/11-3) (from Ch. 110 1/2, par. 11-3)
(Text of Section before amendment by P.A. 89-507)
Sec. 11-3. Who may act as guardian.) (a) A person who
has attained the age of 18 years, and is a resident of the
United States, is not of unsound mind, is not an adjudged
disabled person as defined in this Act, and has not been
convicted of a felony, and who the court finds is capable of
providing an active and suitable program of guardianship for
the minor is qualified to act as guardian of the person and,
if he is a resident of this State, as guardian of the estate.
One person may be appointed guardian of the person and
another person appointed guardian of the estate.
(b) The Department of Mental Health and Developmental
Disabilities or the Department of Children and Family
Services may with the approval of the court designate one of
its employees to serve without fees as guardian of the estate
of a minor patient in a State mental hospital or a resident
in a State institution when the value of the personal estate
does not exceed $1,000.
(Source: P.A. 85-692.)
(Text of Section after amendment by P.A. 89-507)
Sec. 11-3. Who may act as guardian.)
(a) A person who has attained the age of 18 years, and
is a resident of the United States, is not of unsound mind,
is not an adjudged disabled person as defined in this Act,
and has not been convicted of a felony, and who the court
finds is capable of providing an active and suitable program
of guardianship for the minor is qualified to act as guardian
of the person and, if he is a resident of this State, as
guardian of the estate. One person may be appointed guardian
of the person and another person appointed guardian of the
estate.
(b) The Department of Human Services or the Department
of Children and Family Services may with the approval of the
court designate one of its employees to serve without fees as
guardian of the estate of a minor patient in a State mental
hospital or a resident in a State institution when the value
of the personal estate does not exceed $1,000.
(Source: P.A. 89-507, eff. 7-1-97.)
(755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)
Sec. 11-5. Appointment of guardian.
(a) Upon the filing of a petition for the appointment of
a guardian or on its own motion, the court may appoint a
guardian of the person or estate, or both, of a minor as the
court finds to be in the best interest of the minor.
(a-1) A parent, adoptive parent or adjudicated parent,
whose parental rights have not been terminated, may designate
in any writing, including a will, a person qualified to act
under Section 11-3 to be appointed as guardian of the person
or estate, or both, of an unmarried minor or of a child
likely to be born. A parent, adoptive parent or adjudicated
parent, whose parental rights have not been terminated, or a
guardian or a standby guardian of an unmarried minor or of a
child likely to be born may designate in any writing,
including a will, a person qualified to act under Section
11-3 to be appointed as successor guardian of the minor's
person or estate, or both. The designation must be witnessed
by 2 or more credible witnesses at least 18 years of age,
neither of whom is the person designated as the guardian.
The designation may be proved by any competent evidence. If
the designation is executed and attested in the same manner
as a will, it shall have prima facie validity. The
designation of a guardian or successor guardian does not
affect the rights of the other parent in the minor.
(b) The court lacks jurisdiction to proceed on a
petition for the appointment of a guardian of a minor if (i)
the minor has a living parent, adoptive parent or adjudicated
parent, whose parental rights have not been terminated, whose
whereabouts are known, and who is willing and able to make
and carry out day-to-day child care decisions concerning the
minor, unless the parent or parents consent to the
appointment or, after receiving notice of the hearing under
Section 11-10.1, fail to object to the appointment at the
hearing on the petition or (ii) there is a guardian for the
minor appointed by a court of competent jurisdiction. There
shall be a rebuttable presumption that a parent of a minor is
willing and able to make and carry out day-to-day child care
decisions concerning the minor, but the presumption may be
rebutted by a preponderance of the evidence.
(b-1) If the court finds the appointment of a guardian
of the minor to be in the best interest of the minor, and if
a standby guardian has previously been appointed for the
minor under Section 11-5.3, the court shall appoint the
standby guardian as the guardian of the person or estate, or
both, of the minor unless the court finds, upon good cause
shown, that the appointment would no longer be in the best
interest of the minor.
(c) If the minor is 14 years of age or more, the minor
may nominate the guardian of the minor's person and estate,
subject to approval of the court. If the minor's nominee is
not approved by the court, or if the minor resides out of the
State, or if, after notice to the minor, the minor fails to
nominate a guardian of the minor's person or estate, the
court may appoint the guardian without nomination.
(d) The court shall not appoint as guardian of the
person of the minor any person whom the court has determined
had caused or substantially contributed to the minor becoming
a neglected or abused minor as defined in the Juvenile Court
Act of 1987 unless 2 years have elapsed since the last proven
incident of abuse or neglect and the court determines that
appointment of such person as guardian is in the best
interests of the minor.
(e) Previous statements made by the minor relating to
any allegations that the minor is an abused or neglected
child within the meaning of the Abused and Neglected Child
Reporting Act, or an abused or neglected minor within the
meaning of the Juvenile Court Act of 1987, shall be
admissible in evidence in a hearing concerning appointment of
a guardian of the person or estate of the minor. No such
statement, however, if uncorroborated and not subject to
cross-examination, shall be sufficient in itself to support a
finding of abuse or neglect.
(Source: P.A. 87-1081; 88-529.)
(755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)
Sec. 11a-5. Who may act as guardian.) (a) A person who
has attained the age of 18 years, is a resident of the United
States, is not of unsound mind, is not an adjudged disabled
person as defined in this Act, and has not been convicted of
a felony, and who the court finds is capable of providing an
active and suitable program of guardianship for the disabled
person is qualified to act as guardian of the person and as,
if he is a resident of this State, guardian of the estate of
a disabled person.
(b) Any public agency, or not-for-profit corporation
found capable by the court of providing an active and
suitable program of guardianship for the disabled person,
taking into consideration the nature of such person's
disability and the nature of such organization's services,
may be appointed guardian of the person or of the estate, or
both, of the disabled person, or both. The court shall not
appoint as guardian an agency which is directly providing
residential services to the ward. One person or agency may
be appointed guardian of the person and another person or
agency appointed guardian of the estate.
(c) Any corporation qualified to accept and execute
trusts in this State may be appointed guardian of the estate
of a disabled person.
(Source: P.A. 85-692.)
(755 ILCS 5/23-2) (from Ch. 110 1/2, par. 23-2)
Sec. 23-2. Removal.) (a) On petition of any interested
person or on the court's own motion, the court may remove a
representative for any of the following causes. If the
representative:
(1) is acting under letters secured by false pretenses;
(2) is adjudged a person subject to involuntary
admission under the Mental Health and Developmental
Disabilities Code or is adjudged a disabled person;
(3) is convicted of a felony;
(4) wastes or mismanages the estate;
(5) conducts himself or herself in such a manner as to
endanger any his co-representative or the surety on the
representative's his bond;
(6) fails to give sufficient bond or security, counter
security or a new bond, after being ordered by the court to
do so;
(7) fails to file an inventory or accounting after being
ordered by the court to do so;
(8) conceals himself or herself so that process cannot
be served upon the representative him or notice cannot be
given to the representative him;
(9) becomes incapable of or unsuitable for the discharge
of the representative's his duties; or
(10) there is other good cause.
(b) If the representative executor becomes a nonresident
of the United States or the administrator, administrator to
collect, guardian of the estate or temporary guardian becomes
a nonresident of this State, the court may remove the
representative him as such representative.
(Source: P.A. 81-795.)
Section 10. The Statute Concerning Perpetuities is
amended by changing Sections 3 and 4 as follows:
(765 ILCS 305/3) (from Ch. 30, par. 193)
Sec. 3. Definitions and Terms.
As used in this Act unless the context otherwise
requires:
(a) "Trust" means any trust created by any written
instrument, including, without limitation, a trust created in
the exercise of a power of appointment.
(a-5) "Qualified perpetual trust" means any trust:
(i) to which, by the specific terms governing the
trust, the rule against perpetuities does not apply; and
(ii) of which the trustee (or other person to whom
the power is properly granted or delegated) has the power
in the trust document or under any provision of law to
sell, lease, or mortgage property for any period of time
beyond the period of the rule against perpetuities.
(b) "Trustee" includes the original trustee of any trust
and also any succeeding or added trustee.
(c) "Instrument" means any writing pursuant to which any
legal or equitable interest in property or in the income
therefrom is affected, disposed of or created.
(d) "Beneficiary" includes any person to whom any
interest, whether vested or contingent, is given by an
instrument.
(e) Any reference in this Act to income to be "paid" or
to income "payments" or to "receiving" income includes income
payable or distributable to or applicable for the benefit of
a beneficiary.
(f) Words importing the masculine gender include the
feminine and neuter, and words importing the singular number
include the plural and words importing the plural number
include the singular.
(Source: P.A. 76-1428.)
(765 ILCS 305/4) (from Ch. 30, par. 194)
Sec. 4. Application of the Rule Against Perpetuities.
(a) The rule against perpetuities shall not apply:
(1) to any disposition of property or interest therein
which, at the effective date of this Act, does not violate,
or is exempted by statute from the operation of, the common
law rule against perpetuities;
(2) to powers of a trustee to sell, lease or mortgage
property or to powers which relate to the administration or
management of trust assets, including, without limitation,
discretionary powers of a trustee to determine what receipts
constitute principal and what receipts constitute income and
powers to appoint a successor trustee;
(3) to mandatory powers of a trustee to distribute
income, or to discretionary powers of a trustee to distribute
principal prior to termination of a trust, to a beneficiary
having an interest in the principal which is irrevocably
vested in quality and quantity;
(4) to discretionary powers of a trustee to allocate
income and principal among beneficiaries, but no exercise of
any such power after the expiration of the period of the rule
against perpetuities is valid;
(5) to leases to commence in the future or upon the
happening of a future event, but no such lease shall be valid
unless the term thereof actually commences in possession
within 40 years from the date of execution of the lease;
(6) to commitments (A) by a lessor to enter into a lease
with a subtenant or with the holder of a leasehold mortgage
or (B) by a lessee or sublessee to enter into a lease with
the holder of a mortgage; nor
(7) to options in gross or to preemptive rights in the
nature of a right of first refusal, but no option in gross
shall be valid for more than 40 years from the date of its
creation; or
(8) to qualified perpetual trusts created by will or
inter-vivos agreement executed or amended on or after January
1, 1998, or to qualified perpetual trusts created by exercise
of a power of appointment granted under instruments executed
or amended on or after January 1, 1998.
(b) The period of the rule against perpetuities shall
not commence to run in connection with any disposition of
property or interest therein, and no instrument shall be
regarded as becoming effective for purposes of the rule
against perpetuities, and no interest or power shall be
deemed to be created for purposes of the rule against
perpetuities as long as, by the terms of the instrument, the
maker of the instrument has the power to revoke the
instrument or to transfer or direct to be transferred to
himself the entire legal and equitable ownership of the
property or interest therein.
(c) In determining whether an interest violates the rule
against perpetuities:
(1) it shall be presumed (A) that the interest was
intended to be valid, (B) in the case of an interest
conditioned upon the probate of a will, the appointment of an
executor, administrator or trustee, the completion of the
administration of an estate, the payment of debts, the sale
or distribution of property, the determination of federal or
state tax liabilities or the happening of any administrative
contingency, that the contingency must occur, if at all,
within the period of the rule against perpetuities, and (C)
where the instrument creates an interest in the "widow",
"widower", or "spouse" of another person, that the maker of
the instrument intended to refer to a person who was living
at the date that the period of the rule against perpetuities
commences to run;
(2) where any interest, but for this subparagraph (c)
(2), would be invalid because it is made to depend upon any
person attaining or failing to attain an age in excess of 21
years, the age specified shall be reduced to 21 years as to
every person to whom the age contingency applies;
(3) if, notwithstanding the provisions of subparagraphs
(c) (1) and (2) of this Section, the validity of any interest
depends upon the possibility of the birth or adoption of a
child, (A) no person shall be deemed capable of having a
child until he has attained the age of 13 years, (B) any
person who has attained the age of 65 years shall be deemed
incapable of having a child, (C) evidence shall be admissible
as to the incapacity of having a child by a living person who
has not attained the age of 65 years, and (D) the possibility
of having a child or more remote descendant by adoption shall
be disregarded.
(d) Subparagraphs (a) (2), (3) and (6) and paragraph (b)
of this Section shall be deemed to be declaratory of the law
prevailing in this State at the effective date of this Act.
(Source: P.A. 76-1428.)
Section 15. The Trust Accumulation Act is amended by
changing Section 1 as follows:
(765 ILCS 315/1) (from Ch. 30, par. 153)
Sec. 1. No person shall, after this Act goes into effect,
by any deed, will, agreement or otherwise, settle or dispose
of any real or personal property, so and in such manner,
either expressly or by implication, that the income thereof
shall be wholly or partially accumulated for any longer term
after the effective date of such settlement or disposition
than a life or lives in being at that date and 21 years
beyond; and in every case where any accumulation shall be
directed otherwise, such direction shall be null and void,
and the income of such property so directed to be
accumulated, shall, so long as the same shall be directed to
be accumulated contrary to the provisions of this Act, go to
and be received by the person in whom the beneficial interest
in the corpus of the estate from which such income was
derived is vested. This Section does not apply to trusts to
which Section 5 of the Statute Concerning Perpetuities
applies, to qualified perpetual trusts as defined in Section
3 of the Statute Concerning Perpetuities, to trusts created
for the purpose of care of burial places, or to trusts
created as part of a plan for the benefit of some or all of
the employes of one or more employers, including but without
limitation, a stock bonus, pension, disability, death
benefit, profit sharing, unemployment benefit or other plan,
for the purpose of distributing for the benefit of such
employes, including their beneficiaries, the earnings or the
principal, or both earnings and principal, of the fund so
held in trust. Nothing in this Act shall be deemed to affect
or modify in any manner the rule of property known as the
"rule against perpetuities". For purposes of this Act no
settlement or disposition shall be deemed effective as long
as, by the terms of the instrument creating it, the maker of
the instrument has the power to revoke the instrument or to
transfer or direct to be transferred to himself the entire
legal and equitable ownership of the property which is the
subject matter of the settlement or disposition.
The amendatory Act of 1953 applies only to deeds or
agreements inter vivos which become legally effective on or
after July 1, 1953, and only to wills of testators dying on
or after such date.
The amendatory Act of 1957 applies only to instruments
which become effective after July 1, 1957.
This amendatory Act of 1969 applies only to instruments
which become effective after the effective date of this
amendatory Act of 1969, but the last sentence of the first
paragraph of this amendatory Act of 1969 shall be deemed to
be declaratory of the law prevailing in this state at the
effective date of this amendatory Act of 1969.
(Source: P.A. 76-1427.)
Section 95. No acceleration or delay. Where this Act
makes changes in a statute that is represented in this Act by
text that is not yet or no longer in effect (for example, a
Section represented by multiple versions), the use of that
text does not accelerate or delay the taking effect of (i)
the changes made by this Act or (ii) provisions derived from
any other Public Act.
Section 99. Effective date. This Act takes effect upon
becoming law.